The plaintiff in O.S.No.4907/2012 on the file of the

XII Addl. City Civil Judge, Bengaluru, has filed this writ

petition challenging an order dated 18.07.2022 passed

therein, by which the Court rejected the application filed

under Order XXVI Rule 9 of the Code of Civil Procedure,

1908 (henceforth referred to as 'CPC' for short).

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The parties shall henceforth be referred to as

they were arrayed before the Trial Court.

The suit in O.S.No.4907/2012 was filed for

declaration, possession and mandatory injunction in

respect of a house site bearing No.13. The suit was

contested by the defendant Nos.3 and 4, who claimed to

have purchased site No.12 from the defendant No.1.

During the pendency of the suit, the Trial Court

appointed an Advocate Commissioner to verify whether the

construction undertaken by the defendant Nos.3 and 4 was

completed in all respects. The Commissioner submitted a

report indicating that the property that he visited was

completely developed. Later, the suit was set down for

trial and PW.1 marked a rough hand sketch of the layout

formed by the defendant No.1 in the land bearing

Sy.No.80 of Vajarahalli village, which was marked as

Ex.P7. During the course of cross-examination of DW.1,

he admitted that at the time of purchase of site No.12, he

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had verified the layout plan as per Ex.P7 and had

personally visited the site. He also deposed that he had no

objection for a local inspection by appointing a Court

Commissioner.

After the evidence was recorded, the plaintiff

filed an application under Order XXVI Rule 9 of CPC for

appointment of a Court Commissioner to physically identify

three roads situated on three sides of the row consisting of

site bearing Nos.6 to 13 as per Ex.P7 and to physically

measure the total length of the existing row of sites

bearing Nos.6 to 13 as per Ex.P7 and to identify and report

along with a sketch, the construction put up by the

defendant Nos.3 and 4 on the suit property. This

application was opposed by the defendant Nos.3 and 4,

who contended that the application amounted to collection

of evidence, which was impermissible.

The Trial Court in terms of the order impugned

in this writ petition, rejected the application on the ground

that the plaintiff could establish the fact that he was the

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owner of the site No.13 and that the defendant Nos.3 and

4 had constructed a building thereon and that the

additional information requisitioned by conducting a survey

was not necessary. It also held that the Court cannot

order for measurement of the properties of persons, who

are not before the Court. It also held that the suit is filed

in the year 2012 and the plaintiff must have filed an

application much prior to the posting of the case for

arguments. It also held that the information that is sought

to be obtained from a local inspection is not relevant to

adjudicate the dispute.

Being aggrieved by the said order, the present

writ petition is filed.

The learned Senior counsel representing the

plaintiff

submitted

that

the

appropriate

stage

for

appointment of a Court Commissioner is only after the

evidence is recorded. He submitted that the Court failed

to appreciate the question, whether the evidence placed on

record was sufficient and that therefore there was no need

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to appoint a Court Commissioner. He further submitted

that the sale deed, under which the defendant Nos.3 and 4

claimed title to the site bearing No.12 clearly indicated its

Northern boundary as site No.13 and later, defendant

Nos.3 and 4 got it rectified as road on the northern side.

He submitted that by virtue of the rectification, the

defendant Nos.3 and 4 are claiming title to a corner site

bound on West by a road and North by a road. He thus

submitted that in the garb of claiming title to site No.12,

the defendant Nos.3 and 4 were attempting to lay a claim

to site No.13 and therefore, this fact had to be ascertained

only by conducting a local inspection, as the layout plan

prepared by the defendant No.1 was not a